REGULATIONS

Vol. 28 Iss. 12 - February 13, 2012

REGISTRAR'S NOTICE: The State Board of Elections is claiming an exemption from the Administrative Process Act pursuant to § 2.2-4002 B 8 of the Code of Virginia, which exempts agency action relating to the conduct of elections or eligibility to vote.

This regulation details standards to assist local election officials in determining whether an absentee ballot may be counted by distinguishing what errors or omissions are always material and render the ballot invalid from those that are not material.

1VAC20-70-20. Material omissions from absentee ballots.

A. Pursuant to the requirements of § 24.2-706 of the Code of Virginia, a timely received absentee ballot contained in an Envelope B [ should shall ] not be rendered invalid if it contains an error or omission not material to its proper processing.

B. The following omissions are always material and any Envelope B containing such omissions [ should shall ] be rendered invalid if any of the following exists:

1. [ The Except as provided in subdivisions C 2 and 3 of this section, the ] voter did not include his full [ first ] name [ in any order ];

[ 2. The voter did not include a his first name; ]

[ 3. 2. ] The voter did not [ include provide ] his last name;

[ 3. If the voter has a legal middle name, the voter did not provide at least a middle initial; ]

4. The voter did not provide his house number [ , and ] street name or [ his ] rural route address [ , or city of residence, ] or zip code;

[ 5. The voter did not sign Envelope B;

6. The voter's witness did not sign Envelope B;or

7. The ballot is not sealed in Envelope B ] . [ ; or

8. The voter did not provide the date on which he signed Envelope B.

5. The voter did not provide either his city or zip code;

6. The voter did not sign Envelope B;

7. The voter did not provide the date on which he signed Envelope B;

8. The voter's witness did not sign Envelope B; or

9. The ballot is not sealed in Envelope B. ]

C. The ballot [ should shall ] not be rendered invalid if on the Envelope B:

1. The voter included his full name in an order other than "last, first, middle";

2. The voter used his [ middle first ] initial instead of his [ first ] full [ middle ] name, [ so long as the voter provided his full middle name ];

3. The voter [ used provided ] a derivative of his legal name as [ a his ] first [ or middle ] name (e.g., "Bob" instead of "Robert");

5. 6. ] The voter did not provide a zip code [ , so long as the voter provided his city ]; [ or

7. The voter did not provide his city, so long as the voter provided his zip code; ]

[ 6. 8. ] The voter omitted the year in the date on which he signed Envelope B [ .; or

9. The voter provided the incorrect date on which he signed Envelope B.

D. For the purposes of this regulation, "city" may include the voter's locality, town, or any acceptable mailing name for the five-digit zip code of the voter's residence.

E. The illegibility of a voter's or witness' signature on an Envelope B shall not be considered an omission or error.

F. Whether an error or omission on an Envelope B not specifically addressed by this regulation is material and shall render the absentee ballot invalid shall be determined by a majority of the officers of the election present. ]

VA.R. Doc. No. R11-2923; Filed January 25, 2012, 10:52 a.m.

TITLE 2. AGRICULTURE

PESTICIDE CONTROL BOARD

Final Regulation

REGISTRAR'S NOTICE: The Pesticide Control Board is claiming an exemption from the Administrative Process Act in accordance with § 2.2-4006 A 5 of the Code of Virginia, which excludes regulations of the board adopted pursuant to subsection B of § 3.2-3929 or clause (v) or (vi) of subsection C of § 3.2-3931 after having been considered at two or more board meetings and one public hearing.

The amendments add two classes of individuals to those persons exempt from the pesticide applicator certification requirements of the Virginia Pesticide Control Act. Gypsy moth surveyors and cotton boll weevil surveyors who work under the authority of the Virginia Department of Agriculture and Consumer Services will be exempt from the certification requirements.

2. Doctors of medicine or doctors of veterinary medicine applying pesticides as drugs or medication during the course of their practice, or to control pests in corpses;

3. Persons who use or supervise the use of nonrestricted use pesticides as part of their duties only on properties owned or leased by their employers, except those persons identified in 2VAC20-51-20 B;

4. Persons who provide janitorial or cleaning services using nonrestricted use sanitizers, disinfectants, and germicides;

5. Painters who apply restricted use marine antifoulant paint under the direct supervision of a commercial applicator. One commercial applicator shall be present for every eight painters;

6. Forestry applicators standing on the ground who apply general use herbicides for forest vegetation control and tree thinning under the direct on-site supervision of a commercial applicator. One commercial applicator shall be present for every eight forestry applicators and be within voice contact of and no more than 200 feet from such applicators;

7. Individuals engaged in the training required for certification while under the direct on-site supervision of a certified applicator; and

8. Employees of local, state, or federal governmental agencies who from time to time make incidental use of ready-to-use pesticides that are properly registered in Virginia. For purposes of this section, "incidental use" means the use of a pesticide on an occasional, isolated, site-specific basis in order to avoid immediate personal harm from stinging or biting insects. This exemption does not include regular, routine, or maintenance applications of pesticides or any use of restricted-use pesticides.;

9. Individuals who apply pesticides for the survey for gypsy moth under the authority of the department; and

10. Individuals who apply pesticides for the survey for cotton boll weevil under the authority of the department.

VA.R. Doc. No. R12-3090; Filed January 19, 2012, 3:13 p.m.

TITLE 4. CONSERVATION AND NATURAL RESOURCES

MARINE RESOURCES COMMISSION

Final Regulation

REGISTRAR'S NOTICE: The following regulation filed by the Marine Resources Commission is exempt from the Administrative Process Act in accordance with § 2.2-4006 A 11 of the Code of Virginia; however, the commission is required to publish the full text of final regulations.

A. All oysters taken from natural public beds, rocks, or shoals shall be placed on the culling board and culled by hand to the inside open part of the boat in a loose pile; however, when oysters are taken by hand and held in baskets or other containers they shall be culled as taken and transferred from the container to the inside open part of the boat in a loose pile and subject to inspection by any Marine Resources Commission law-enforcement officer.

B. If oysters from leased grounds and oysters from public grounds are mixed in the same cargo on a boat or motor vehicle, the entire cargo shall be subject to inspection under this chapter.

C. It shall be unlawful for any harvester to store oysters taken from public grounds on any boat in any type of container, except as described for the James River in 4VAC20-1230-30 M. All oysters taken from said areas shall be sold or purchased only in the regular oyster one-half bushel or one bushel measure as described in § 28.2-526 of the Code of Virginia, or the alternate container described in subsection D of this section; except that on the seaside of the Eastern Shore oysters may be sold without being measured if both the buyer and the seller agree to the number of bushels of oysters in the transaction.

D. An alternate container produced by North Machine Shop in Mathews, Virginia, may be used for measuring oysters to be sold or purchased. The dimensions of this metallic cylindrical container shall be 18.5 inches inside diameter and 11 inches inside height.

D.E. In the inspection of oysters the law-enforcement officer shall, with a shovel, take at least one bushel of oysters at random, provided that the entire bushel shall be taken at one place in the open pile of oysters.

VA.R. Doc. No. R12-3098; Filed January 27, 2012, 11:23 a.m.

TITLE 4. CONSERVATION AND NATURAL RESOURCES

MARINE RESOURCES COMMISSION

Final Regulation

REGISTRAR'S NOTICE: The following regulation filed by the Marine Resources Commission is exempt from the Administrative Process Act in accordance with § 2.2-4006 A 11 of the Code of Virginia; however, the commission is required to publish the full text of final regulations.

A. Any registered commercial fisherman meeting the conditions described in this subsection shall be eligible to participate in the American shad bycatch fishery in 20112012:

1. The registered commercial fisherman shall apply for a VMRC American Shad Bycatch Permit and possess that permit while fishing, landing, or selling his catch of American shad.

2. The registered commercial fisherman shall complete the VMRC American Shad Bycatch Survey form to describe his pending fishing activity.

B. It shall be unlawful for any person to possess aboard a vessel more than 10 American shad. When more than one registered and permitted fisherman is fishing on the same vessel, it shall be unlawful to possess more than 10 American shad aboard that vessel.

C. It shall be unlawful for any person to possess aboard a vessel or land any American shad unless that person possesses at least an equal number of fish of only the following food-grade species: spot, croaker, bluefish, catfish, striped bass or white perch.

D. Possession of American shad by any person permitted in accordance with this section shall be lawful only when those American shad were harvested from the bycatch area. Possession of any American shad harvested in Virginia waters that are outside of the bycatch area shall constitute a violation of this regulation.

E. American shad harvested only as bycatch by anchored gill nets and staked gill nets may be possessed or retained for sale in accordance with the provisions of this regulation. It shall be unlawful for any person to harvest, land, or possess any American shad taken by any recreational gear or by any commercial gear, except anchored gill net or staked gill net.

F. Every fisherman permitted for the American shad bycatch fishery shall contact the commission's interactive voice response system once weekly to report the following for the preceding weekly period: name, registration number, number of fishing trips taken, water body fished, number of nets set, number of American shad caught, and number retained.

A. During the period January 1 through April 30 of each year, it shall be unlawful for any person to do any of the following:

1. Possess aboard any vessel in Virginia more than 30,00050,000 pounds of scup.

2. Land in Virginia more than a total of 30,00050,000 pounds of scup during each consecutive 7-day landing period, with the first 7-day period beginning on January 1.

B. When it is projected and announced that 80% of the coastwide quota for this period has been attained, it shall be unlawful for any person to possess aboard any vessel or to land in Virginia more than a total of 1,000 pounds of scup.

C. During the period November 1 through December 31 of each year, it shall be unlawful for any person to possess aboard any vessel or to land in Virginia more than 8,000 pounds of scup.

D. During the period May 1 through October 31 of each year, the commercial harvest and landing of scup in Virginia shall be limited to 13,085 pounds.

E. For each of the time periods set forth in this section, the Marine Resources Commission will give timely notice to the industry of calculated poundage possession limits and quotas and any adjustments thereto. It shall be unlawful for any person to possess or to land any scup for commercial purposes after any winter period coastwide quota or summer period Virginia quota has been attained and announced as such.

F. It shall be unlawful for any buyer of seafood to receive any scup after any commercial harvest or landing quota has been attained and announced as such.

G. It shall be unlawful for any person fishing with hook and line, rod and reel, spear, gig, or other recreational gear to possess more than 50 scup. When fishing is from a boat or vessel where the entire catch is held in a common hold or container, the possession limit shall be for the boat or vessel and shall be equal to the number of persons on board legally eligible to fish multiplied by 50. The captain or operator of the boat or vessel shall be responsible for any boat or vessel possession limit. Any scup taken after the possession limit has been reached shall be returned to the water immediately.

VA.R. Doc. No. R12-3110; Filed January 27, 2012, 11:20 a.m.

TITLE 4. CONSERVATION AND NATURAL RESOURCES

MARINE RESOURCES COMMISSION

Final Regulation

REGISTRAR'S NOTICE: The following regulation filed by the Marine Resources Commission is exempt from the Administrative Process Act in accordance with § 2.2-4006 A 11 of the Code of Virginia; however, the commission is required to publish the full text of final regulations.

A. It shall be unlawful for any vessel to land in Virginia more than 300 pounds of tilefish, as described in 4VAC20-1120-20, per day when commercial fishing.person harvesting tilefish when commercial fishing, as described in 4VAC20-1120-20, to do any of the following:

1. Possess aboard any vessel in Virginia waters any amount of tilefish, in combination, in excess of 500 pounds.

2. Possess aboard any vessel in Virginia waters any amount of blueline tilefish in excess of 200 pounds.

3. Possess aboard any vessel any amount of golden tilefish during any in-season closure announced by the National Marine Fisheries Service.

B. It shall be unlawful for any vessel to land in Virginia more than 175 pounds of grouper, as described in 4VAC20-1120-20, per day when commercial fishing.

C. It shall be unlawful for any person to transfer at sea to another person or vessel any harvest of tilefish or grouper.

The amendments (i) reduce the number of members serving on the Curriculum Review Committee from 13 to nine; (ii) transfer the approval authority of the performance outcomes from the Criminal Justice Services Board to the board's Committee on Training; and (iii) remove the performance outcomes from the regulations.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

"Agency administrator" means any chief of police, sheriff, or agency head of a state or local law-enforcement agency or nonlaw-enforcement head of a communications center.

"Board" means the Criminal Justice Services Board.

"Certified training academy" means a training facility in compliance with academy certification standards and operated by the state or local unit(s) of government for the purpose of providing instruction of compulsory minimum training standards.

"Curriculum Review Committee" means the committee consisting of the following 13nine individuals: fourtwo members of the committee shall represent regional criminal justice academies, fourtwo members of the committee shall represent independent criminal justice academies, one member shall represent the Department of State Police Training Academy, and four experienced communications personnel shall represent emergency communication functions. The Committee on Training shall appoint members of the Curriculum Review Committee.

"Department" means the Department of Criminal Justice Services.

"Director" means the chief administrative officer of the Department of Criminal Justice Services.

"Dispatcher" means any person employed by or in any local or state government agency either full or part-time whose duties include the dispatching of law-enforcement personnel.

"Emergency medical dispatcher training" means training which meets or exceeds the training objectives as provided in Performance Outcome 1.6, which is set out in 6VAC20-60-100.

"Standard" means Performance Outcome, Training Objective, Criteria for Testing, and Lesson Plan Guide relating to compulsory minimum training for dispatchers and is found on the department's website.

Pursuant to the provisions of § 9.1-102(8)9.1-102 (10) of the Code of Virginia, the board establishes the followingcategories of training as listed below as the compulsory minimum training standards for dispatchers:

1. The performance outcomes are specified in 6VAC20-60-100. Performance outcomes may not be changed except as noted in 6VAC20-60-25 through the Administrative Process Act.

A. The Criminal Justice Services Board shall be the approval authority for the training categories and performance outcomes of the compulsory minimum training standards. Amendments to training categories and performance outcomes shall be made in accordance with the provisions of the Administrative Process Act (§ 2.2-4000 et seq. of the Code of Virginia).

B. The Committee on Training of the Criminal Justice Services Board shall be the approval authority for the performance outcomes, training objectives, criteria, and lesson plan guides that support the performance outcomes. TrainingPerformance outcomes, training objectives, criteria, and lesson plan guides supporting the compulsory minimum training standards and performance outcomes may be added, deleted, or amended by the Committee on Training based upon written recommendation of a chief of police, sheriff, agency administrator, academy director, nonlaw-enforcement head of a communications center, or the Curriculum Review Committee.

Prior to approving changes to the performance outcomes, training objectives, criteria, or lesson plan guides, the Committee on Training shall conduct a public hearing. Sixty days prior to the public hearing, the proposed changes shall be distributed to all affected parties for the opportunity to comment. Notice of change of the performance outcomes, training objectives, criteria, and lesson plan guides shall be filed for publication in the Virginia Register of Regulations upon adoption, change, or deletion. The department shall notify each certified academy in writing of any new, revised, or deleted objectives. Such adoptions, changes, or deletions shall become effective 30 days after notice of publication in the Virginia Register.

In conjunction with responding to calls for public safety services, the dispatcher faces challenges every day that require knowledge, judgment, skill, and ability from multiple and varied sources. To meet these challenges successfully, the dispatcher must develop good communication skills in the performance of relevant duties. Expected performance outcomes in this category include the following:

1.1 Obtain information related to complaints and/or requests for service from the public, field units, and other agencies.

In conjunction with responding to calls for public safety services, the dispatcher faces challenges every day that require knowledge, judgment, skill, and ability from multiple and varied sources. To meet these challenges successfully, the dispatcher must develop good judgment in the performance of relevant duties. Expected performance outcomes in this category include the following:

2.1 Receive, prioritize, and handle multiple tasks related to emergency call taking and dispatching using judgment based on policies and procedures.

2.2 Receive and handle various types of nonemergency complaints and requests from the public or other agencies by using judgment based on policies and procedures.

Category 3 - Legal Issues

In conjunction with responding to calls for public safety services, the dispatcher must identify legal requirements based on the Constitution of the United States, the Code of Virginia, and/or local ordinances where applicable. Expected performance outcomes in this category include the following:

3.1 Apply federal/state laws, local ordinances, and rules and regulations established for dispatch operations.

3.2 Perform the duties of a dispatcher with awareness of general liability applicable to this job.

3.3 Testify in court.

Category 4 - Professionalism

In conjunction with responding to calls for public safety services, the dispatcher must demonstrate professionalism in every aspect of performance of these services. The dispatcher faces challenges every day that require knowledge, judgment, skill, and ability from multiple and varied sources. To meet those challenges successfully, the dispatcher must attain and maintain professionalism in the performance of all duties. Expected performance outcomes include the following:

4.1 Respond to stressful situations professionally.

4.2 Respond to abusive callers or difficult people professionally.

Category 5 - On-the-Job Training

In conjunction with responding to calls for service, the dispatcher must identify requirements related to the employing law-enforcement agency. These requirements may be general in nature, but serve to enhance the ability of both the dispatcher and the agency to provide needed public safety services. Expected performance outcomes in this category include the following:

NOTICE: The following forms used in administering the regulation were filed by the agency. The forms are not being published; however, online users of this issue of the Virginia Register of Regulations may click on the name to access a form. The forms are also available from the agency contact or may be viewed at the Office of the Registrar of Regulations, General Assembly Building, 2nd Floor, Richmond, Virginia 23219.

REGISTRAR'S NOTICE: The State Corporation Commission is exempt from the Administrative Process Act in accordance with § 2.2-4002 A 2 of the Code of Virginia, which exempts courts, any agency of the Supreme Court, and any agency that by the Constitution is expressly granted any of the powers of a court of record.

The amendments make modifications (i) necessitated by Chapters 738 and 740 of the 2011 Acts of Assembly, which eliminate certain requirements applicable to competitive telecommunications services and (ii) to account for certain competitive and technological changes in the telecommunications industry. The amendments remove the price ceilings for retail services, provide more pricing flexibility, set forth requirements for tariffed and nontariffed services, and establish tariff requirements for nonretail services.

Changes from the proposed regulations include incorporating a change to the definition of "locality," incorporating a change to the escrow account for customer deposits from a previous Commission Order, removing references to the Division of Economics and Finance, including 20VAC5-417-40 (MLEC requirements) as an amended section, and updating annual reporting requirements to remove the number of customers.

AT RICHMOND, JANUARY 17, 2012

COMMONWEALTH OF VIRGINIA, ex rel.

STATE CORPORATION COMMISSION

CASE NO. PUC-2011-00048

Ex Parte: In re: Amending the rules governing the certification and regulation of competitive local exchange carriers

ORDER REVISING REGULATIONS

On August 4, 2011, the State Corporation Commission ("Commission") issued an Order for Notice and Hearing ("August 4 Order") that initiated a proceeding to consider amending the Commission's rules governing the certification and regulation of competitive local exchange carriers, 20 VAC 5-417-10 et seq. ("CLEC Rules"). The August 4 Order noted that the CLEC Rules were last revised on September 27, 2007, by a Final Order issued by the Commission in Case No. PUC-2007-00033. The Commission concluded that it is appropriate to revisit the CLEC Rules to make modifications necessitated by changes in the law by the Virginia General Assembly enacted in Chapters 738 and 740 of the 2011 Virginia Acts of Assembly, and by competitive and technological changes that have occurred in the telecommunications industry since the last review of the CLEC Rules.

To facilitate this review, the Staff of the Commission ("Staff") prepared proposed revisions of the CLEC Rules ("Proposed Rules"), which were, pursuant to the August 4 Order, published in the Virginia Register. Public notice was also given so as to provide the public an opportunity to comment on the Proposed Rules, to request a hearing thereon, or to suggest modifications or supplements to the Proposed Rules.

While no requests for hearing were filed, comments on the Proposed Rules were filed by BVU Authority, Sprint Communications of Virginia, United Telephone Southeast, LLC, and Central Telephone Company of Virginia (jointly as CenturyLink), Verizon Virginia Inc. and Verizon South Inc. (jointly as Verizon), and Cox Virginia Telcom, LLC. BVU Authority also included in its comments to the Proposed Rules certain revisions to the requirements for Municipal Local Exchange Carriers ("MLEC") set out in 20 VAC 5-417-40 of the CLEC Rules.

On October 28, 2011, the Staff filed the Response of the Division of Communications ("Staff Response"), which, in part, reviewed the comments submitted on the Proposed Rules. Staff also noted that Rule 20 VAC 5-417-40 was not specifically noticed at the outset of this proceeding as no changes to this section of the CLEC Rules were included in the Proposed Rules. However, the Staff Response set out revisions to the Proposed Rules based upon the comments received, including additional modifications to the MLEC requirements in 20 VAC 5-417-40 of the CLEC Rules.

On November 22, 2011, the Commission issued an Order providing the public an opportunity to comment on, request a hearing on, or suggest modifications or supplements to the revisions to the MLEC requirements set out in 20 VAC 5-417-40 of the CLEC Rules as proposed by BVU Authority and as further modified by the Staff. Again, no requests for a hearing were received by the Commission. Only BVU filed comments, which were supportive of the additional changes to 20 VAC 5-417-40 noted in the Staff Response.

NOW THE COMMISSION, upon consideration of the foregoing, is of the opinion and finds that the revisions to the CLEC Rules, 20 VAC 5-417-10 et seq., as set forth and attached to this Order, should be adopted.

Accordingly, IT IS ORDERED THAT:

(1) The Commission's Rules Governing Certification and Regulation of Competitive Local Exchange Carriers, 20 VAC 5-417-10 et seq. are hereby revised and adopted as attached to this Order, and shall become effective as of February 1, 2012.

(2) A copy of this Order including the revisions to 20 VAC 5-417-10 et seq., shall be forwarded to the Registrar of Regulations for publication in the Virginia Register.

(3) There being nothing further to come before the Commission, this case shall be removed from the docket and the papers herein be placed in the file for ended causes.

The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Attestation" means a written statement regarding compliance with a requirement or condition contained in this chapter, signed by an officer, director, or comparable official of the applicant or new entrant.

"Basic telephone service" means the customer's dial tone line and local usage. Local usage can be purchased on a flat rate, measured, or on a per message basis, or some combination thereof.

"Bundled service" means a designated group of services or products offered to customers at a package or set price. A bundled service may consist of regulated and nonregulated services or products.

"Casual user service" means a local exchange telecommunications service of a competitive local exchange carrier or municipal local exchange carrier that does not require a customer to actively subscribe or contract with the competitive local exchange carrier or municipal local exchange carrier to use the service. For example, these services may require alternate billing arrangements such as a calling card to use the service.

"Commission" means the State Corporation Commission.

"Competitive local exchange carrier" ("CLEC") means an entity, other than a locality, certificated to provide local exchange telecommunications services in Virginia after January 1, 1996, pursuant to § 56-265.4:4 of the Code of Virginia. An incumbent local exchange carrier shall be considered a CLEC in any territory that is outside the territory it was certificated to serve as of December 31, 1995, for which it obtains a certificate to provide local exchange telecommunications services on or after January 1, 1996.

"Incumbent local exchange carrier" or "incumbent" ("ILEC") means a public service company providing local exchange telecommunications services in Virginia on December 31, 1995, pursuant to a certificate of public convenience and necessity, or the successors to any such company.

"Individual customer pricing" means the offering of service or services to a specific customer at rates, terms, or conditions provided through an agreement instead of pursuant to tariff.

"Interconnection" means the point of interface between local exchange carriers' networks. Interconnection can be achieved at different points of the network.

"Retail [ local exchange ] telecommunications service or services" means telecommunications service or services that are offered for sale directly to the public.

"Service charges" means charges associated with work activities performed by the LEC in conjunction with providing service. These include, but are not limited to, charges for installation, activation, order processing, line restoration, maintenance visits, or changes in service.

"Switched access charges" means the per minute rates billed by LECs to IXCs or other LECs for the use of the LEC's network when an end user makes or receives a long distance call.

"Tariff" means schedules on file with the commission that are open to public inspection that detail a local exchange carrier's services, rates, charges, terms, and conditions of service.

A. An original and 15 copies of an application for a certificate of public convenience and necessity shall be filed with the Clerk of the Commission.

1. The applicant shall deliver a copy of the application to the Division of Communications [ and a copy to the Division of Economics and Finance ] at the same time it is filed with the Clerk of the Commission.

2. A copy of all confidential information filed under seal with the Clerk of the Commission in connection with the application shall be provided by the applicant, at the time of filing, to the Division of Communications [ , the Division of Economics and Finance, ] and the Office of General Counsel pursuant to 5VAC5-20-170.

3. Any amendment or supplement to the application shall be filed in compliance with this section.

B. Notice of the application shall be given to all certificated local exchange carriers and other interested parties in Virginia in a form to be prescribed by the commission pursuant to an order.

C. The application shall identify the applicant including: (i) its name, address, telephone number, fax number, and website address, if any; (ii) the name, address, telephone number, fax number, type of entity (e.g., corporation, limited liability company), and website address of its parent or parents, if any; (iii) a list of its officers and directors or, if the applicant is not a corporation, a list of its principals or comparable officials; (iv) a toll-free telephone number for customer complaints and inquiries, if available; and (v) the name, address, telephone number, fax number, and e-mail address of the primary in-house regulatory contact.

D. An incorporated CLEC applicant shall demonstrate that it is organized under the laws of Virginia as a public service company by providing (i) a true and correct copy of its articles of incorporation and all amendments thereto, and (ii) a copy of the certificate and order issued by the commission.

E. An unincorporated CLEC applicant shall demonstrate that it is authorized to do business in the Commonwealth of Virginia by providing the following:

1. In the case of an unincorporated entity formed under the laws of Virginia: (i) a true and correct copy of its articles of organization, certificate of limited partnership, or other organizational document or documents, and all amendments thereto; and (ii) a copy of the certificate and order issued by the commission.

2. In the case of an unincorporated entity formed under the laws of a jurisdiction other than Virginia: (i) a copy of the certificate or statement of registration to do business in Virginia issued to it by the commission, and (ii) a true and correct copy of its articles of organization, certificate of limited partnership, or other organizational document or documents, and all amendments thereto.

F. An MLEC applicant shall include a copy of its applicable city, town, or county charter.

G. An applicant shall be required to show its financial, managerial, and technical ability to render local exchange telecommunications services.

1. To demonstrate financial ability, each CLEC applicant shall, at a minimum, provide the following:

a. The per books balance sheet, income statement, and statement of changes in financial position of the applicant or the entity responsible for the financing of the applicant, for the two most recent annual periods. Audited financial statements shall be provided, if available, including notes to the financial statements and auditor's letter. Published financial information that includes Securities and Exchange Commission forms 10K and 10Q shall be provided, if available.

b. A continuous performance or surety bond in a minimum amount of $50,000, in a form to be prescribed by the commission staff. The bond shall be provided to the Division of [ Economics and FinanceCommunications ] within 30 days of the issuance of the Order for Notice and Comment.

2. To demonstrate financial ability, each MLEC applicant shall, at a minimum, provide the following information:

a. The two most recent annual financial statements for the entity responsible for financing. Financial statements shall include a balance sheet, income statement, statement of changes in financial position, notes to the financial statements, and auditor's letter.

b. Proof of a minimum bond (or other senior debt) rating of "BB" or an equivalent rating by a major rating agency, or a guarantee by a guarantor possessing a credit rating of "BB" or higher from a major rating agency. In lieu of such minimum bond rating or guarantee, the applicant shall submit other evidence that will demonstrate financial responsibility. This evidence may include, but not necessarily be limited to, letters of credit, irrevocable lines of credit, and surety or performance bonds.

3. To demonstrate managerial and technical ability, each CLEC applicant shall, at a minimum, provide the following information:

a. A description of its or its parent's history and experience of providing telecommunications or other relevant services, if any; and

b. Any documentation that supports its technical abilities; and

c.b. The managerial and technical experience of each principal officer or member and appropriate senior management and technical personnel.

4. To demonstrate managerial and technical ability, each MLEC applicant shall, at a minimum, provide the following information:

a. A description of the locality's history of providing electric distribution services and other utility services, if any;

b. A description of its experience in providing telecommunications or other relevant services, if any;

c. A list of the geographic areas in which it has provided and is currently providing utility, telecommunications, or other relevant services; and

d. The managerial and technical experience of senior management and technical personnel.

5. The applicant shall provide a list of the states where the applicant, parent, or any affiliate holds authority to provide local exchange telecommunications services, interexchange telecommunications services, or both, and where service is actually being provided, including the date service was commenced for each.

6. The applicant shall also provide a list of any state where authorization was previously held or service was provided and subsequently discontinued and the applicable dates.

7. The applicant shall provide a list of the states where applicant, parent, or any affiliate has had certification or authorization denied, suspended, terminated, or revoked. The list shall include the reason for such denial, suspension, or revocation and copies of any orders issued by a state commission or regulatory authority addressing such action.

H. Each application shall include an illustrative tariff or tariffs, which shall include, at a minimum, the applicant's proposed terms and conditions of service. Applicants that desire to have any of their services deregulated or detariffed shall file such a proposal in accordance with 20VAC5-417-50.

I.H. Each application shall include the applicant's proposed form of regulation for its services if such form of regulation differs from that set forth in 20VAC5-417-50.

J.I. A CLEC application shall be for statewide authority unless otherwise requested by the CLEC. If less than statewide authority is being requested, the CLEC shall identify the geographic area or areas for which the CLEC is requesting authority to provide service.

K.J. An MLEC application shall identify the geographic area or areas for which the MLEC is requesting authority to provide service. The applicant should consult § 15.2-2160 A of the Code of Virginia for determining the limits of its proposed service area.

L. An MLEC applicant shall provide an attestation that it will comply with the requirements in 20VAC5-417-40, MLEC requirements.

M. All applicants shall provide an attestation that they will comply with the requirements in 20VAC5-417-30, conditions for new entrants.

N.K. The MLEC applicant shall provide a map of its electric distribution facilities in place as of March 1, 2002. The map should be in sufficient detail to identify the city, town, and county boundaries.

O.L. Upon request of the commission staff, an applicant shall provide such information with respect to any of its services or practices as may be relevant to the review of the application.

A. A new entrant shall, either directly or through arrangements with others, provide the following:

1. Access to 911 and E911 services;

2. White page directory listings;

3. Access to telephone relay services;

4. Access to directory assistance;

5. Access to operator services;

6. Equal access to interLATA long distance carriers;

7. Free blocking of 900- and 700-type services so long as the same requirement applies to incumbent local exchange companies; and

8. Interconnection on a nondiscriminatory basis with other local exchange carriers.

B. To the extent economically and technically feasible, the new entrant shall provide service to all customers in the same service classification in its designated geographic service areas in accordance with its tariff offerings.

C. The new entrant shall have procedures to prevent deceptive and unfair marketing practices.

D. The new entrant shall be subject to applicable commission rules and regulations, including but not limited to, service quality and billing standards or rules, the rules governing disconnection of local exchange telephone service (i.e., 20VAC5-413), and rules governing the discontinuance of local exchange telecommunications services (i.e., 20VAC5-423).

F. A new entrant shall, prior to collecting any customer deposits, establish and maintain an escrow account for such funds, held in a Virginia office of a duly chartered state or national bank, savings and loan association, savings bank, or credit union, which is unaffiliated with the applicant. The Division of Economics and Finance shall be notified of this arrangement at its inception and any subsequent change to the arrangement. Any escrow arrangement established pursuant to this requirement shall be maintained until such time as the staff or commission determines it is no longer necessary.

A. An MLEC that is a city, town, or county shall file data annually with the Division of Communications to demonstrate that, in the aggregate, revenues associated with intrastate telecommunications services cover the incremental and any required imputed or allocated costs of providing such telecommunications services except in circumstances where permitted by § 56-265.4:4 B 3 of the Code of Virginia. The first filing shall be 60 days after the end of the MLEC'scity, town, or county's calendar or fiscal year during which the MLECcity, town, or county began providing intrastate telecommunications services and shall continue annually thereafter.

B. An MLEC that is a city, town, or county shall maintain incremental cost studies for each service offered demonstrating that the associated charges: (i) do not include any subsidies, unless approved by the commission; and (ii) take into account, by imputation or allocation, equivalent charges for all taxes, pole rentals, rights-of-way, licenses, and similar costs incurred by for-profit providers. The applicable study or studies shall be filed with the commission and the Division of Communications within 30 days of a complaint alleging that an individual local exchange service offering or offerings of an MLECa city, town, or county fails to comply with these requirements.

C. An MLEC that is a city, town, or county shall maintain accounting records for the revenues, expenses, property, and source of investment dollars pertaining to its telecommunications services that are separate from the accounting records of its affiliated county, city, or town. ]

20VAC5-417-50. Regulation of new entrants providing local exchange telecommunications services.

A. Unless otherwise allowed by the commission, tariffsTariffs are permitted but not required for any or all local exchange telecommunications service offerings except those that are comparable to offerings of any ILEC that does not require tariffsterms, conditions, or rates of a new entrant's retail local exchange telecommunications service offerings. Unless otherwise allowed by the commission, tariffs are required for nonretail telecommunications services, [ i.e., such as switched ] access charges.

1. A new entrant electing not to tariff any or all of its retail service or services shall provide customers with access to adequate and complete information regarding the applicable terms, conditions, and rates of its nontariffed retail service or services. The form of such information is not limited to, but may be provided through, individual contracts, online website access to service guides, or other user documents. A new entrant shall provide the Division of Communications with link information to any online website information.

2. A new entrant shall advise the Division of Communications in writing if it elects not to submit tariffs for any of its retail services. The notification shall include the extent of the nontariffing, i.e., whether all retail services will not be tariffed or only some services or some terms, conditions, or rates will not be tariffed.

3. A new entrant that has tariffs on file with the Division of Communications may elect to eliminate the tariff of any or all terms, conditions, or rates of its retail services as an administrative or nonprice tariff change as prescribed by subdivision F 4 of this section.

B. A new entrant that has received certification to provide local exchange telecommunications services shall, prior to offering such services, submit its proposed initial tariffs to the Division of Communications. A new entrant shall not offer any local exchange telecommunications services until its tariffs have been accepted by the Division of Communications and are effective.such time as:

1. The new entrant has complied with notifying the Division of Communications pursuant to subdivision A 2 of this section, for terms, conditions, or rates of retail services it elects not to tariff.

2. The new entrant has submitted initial tariffs to the Division of Communications for nonretail services and for any retail services that it elects to tariff, and the tariffs have been reviewed and accepted by the Division of Communications.

C. A new entrant may petition the commission to consider deregulation or detariffing treatment for any of its specific service offerings. Any deregulatory or detariffing treatment for any comparable service, class of customers, or geographic area granted to an ILEC shall be applicable to a new entrant under like conditionsthat elects not to tariff any or all terms, conditions, or rates of its retail local exchange telecommunications service offerings may determine subsequently to submit tariffs to the Division of Communications for any such retail local exchange telecommunications services. Any subsequent filings shall be submitted to the Division of Communications for review and acceptance. A new entrant shall continue offering its retail services on a nontariffed basis until such time as the tariffs are reviewed and accepted by the Division of Communications, and on a tariffed basis thereafter.

D. Unless otherwise allowed by the commission, prices for basic telephone service and associated service charges, not purchased as part of a bundled service, shall not exceed the highest of the comparable tariffed or applicable ceiling rates, as determined by the commission, of an incumbent local exchange carrier or carriers in the same service territory.

E.D. 1. Beginning December 1, 2007, unlessUnless otherwise allowed by the commission, prices for a new entrant's intrastate access services shall not exceed the highest of the following:

b. The aggregate intrastate switched access charge rates of the ILEC in whose service territory the new entrant is providing service. A new entrant may utilize a blended or composite rate to reflect applicable price ceilings of more than one ILEC or to reflect an alternative rate structure to the ILEC.

c. An intrastate switched access charge benchmark rate of $.029 per minute for a transition period from December 1, 2007, through March 30, 2008. Effective April 1, 2008, this subdivision no longer applies.

2. A new entrant may be required to submit supporting documentation to justify its switched access rates, structure, and appropriate functions to the Division of Communications.

3. Unless otherwise ordered by the commission, if an ILEC lowers its switched access charges on its own, such reductions shall not be reflected in applicable price ceilings and a new entrant is not required to adjust its rates in such circumstances.

4. If an ILEC lowers switched access charges pursuant to a commission order, a new entrant shall have 90 days to adjust and implement its switched access rates to correspond to the new applicable price ceiling. Applicable access tariffs shall be filed with the Division of Communications at least 10 days prior to the effective date. The commission may approve an alternative implementation schedule for a new entrant or new entrants to adjust their switched access rates.

F. Tariff changesE. Any price increase for [ retail ] local exchange telecommunications services of new entrants shall be implemented as follows:

1. Price decreases shall be noticed to the Division of Communications no later than three days after the effective date.

2. Price increases shall become effective after at least 30 days' written notice is provided to affected customers and at least seven business days' written notice to the Division of Communications.

a.1. Written notice to affected customers shall be provided through bill inserts, bill messages, or direct mail, or electronic mail or other forms of electronic communications when the customer has requested or authorized electronic bill delivery or other electronic communications.

b.2. Notice for price increases for a casual user or nonsubscriber service shall be provided through publication once as display advertising in newspapers having general circulation in the areas served by the new entrant. Display advertising shall only be used for notice for casual user or nonsubscriber services unless otherwise authorized by the commission.

F. Tariff changes for local exchange telecommunications services of new entrants shall be implemented as follows:

1. Price increases, in addition to the requirements in subsection E of this section, shall be submitted to the Division of Communications at least seven business days prior to the effective date.

c.a. A copy of the customer notice, the date or dates of such notification, and proof of publication, if applicable, shall be included with the noticesubmission to the Division of Communications.

d. An allowableb. A rate increase, if there are no current customers, shall not require customer notice. The noticesubmission to the Division of Communications shall include an attestation by the new entrant that it has no customers.

2. Price decreases shall be submitted to the Division of Communications no later than three days after the effective date.

3. New service tariff offerings shall become effective after at least three business days' written noticesubmission to the Division of Communications.

4. Administrative or nonprice tariff changes shall become effective after at least three business days' written noticesubmission to the Division of Communications.

5. A new entrant, subject to prior approval of the Division of Communications, may seek to file tariffprice changes in less than the prescribed timeframe stated above.

G. A new entrant may petition the commission for approval of pricing structures or rates that do not conform with access price ceiling requirements in subsectionssubsection D and Eof this section. The new entrant shall provide appropriate documentation and rationale to support any request. The commission may permit such alternative pricing structures and rates if the public interest will not be harmed.

H. Unless otherwise ordered by the commission, price ceiling requirements shall not apply to a new entrant's services other than those specified in subsections D and E of this section.

I.H. Tariff filings and revisions shall be submitted to the Director of the Division of Communications and shall include an original and two copies.

J.I. A new entrant may, for a specified period of time, offer promotional rates, terms, or conditions for its local exchange telecommunications services offerings that differ from the rates, terms, or conditions in its tariffs. Promotions may be submitted by letter and become effective after at least three business days' written notice to the Director of the Division of Communications. [ Upon request from a new entrant, the Division of Communications may grant a shorter effective date for the promotion. ]

K.J. A new entrant may offer individual customer pricing for local exchange telecommunications services to a customer that may differ from those in its tariffs in a competitive bid or procurement situation. The new entrant shall retain records of any such agreements and make same available to the Division of Communications upon request.

L.K. A new entrant may, pursuant to § 56-481.2 of the Code of Virginia, submit for the commission's consideration an alternative regulatory plan for the commission's considerationor seek other deregulatory treatment or detariffing for nonretail services in the applicant's certification proceeding or at a later date if it desires regulation different from that specified in this section.

M.L. A new entrant providing local exchange telecommunications services shall not abandon or discontinue such services except as prescribed in 20VAC5-423, Rules Governing the Discontinuance of Local Exchange Telecommunications Services Provided by Competitive Local Exchange Carriers.

N.M. An MLEC may petition the commission for authority to include a subsidy in any of its local exchange services. The commission may approve such a subsidy if it is deemed to be in the public interest. Any subsidy approved by the commission may not result in a price for the service lower than the price for the same service charged by the ILEC provider in the area.

O.N. A new entrant requesting authority to expand its geographic service territory not covered by its existing certificate shall file a petition with the commission.

O. A new entrant shall, prior to collecting any customer deposits, establish and maintain an escrow account for such funds, held in a [ Virginia office of a ] duly chartered state or national bank, savings and loan association, savings bank, or credit union, which is unaffiliated with the applicant. The Division of [ Economics and Finance Communications ] shall be notified of this arrangement at its inception and of any subsequent change to the arrangement. Any escrow arrangement established pursuant to this requirement shall be maintained until such time as the staff or commission determines it is no longer necessary.

P. The new entrant shall be subject to applicable commission rules and regulations.

Q. The new entrant shall provide interconnection on a nondiscriminatory basis with other local exchange carriers.

A. A new entrant shall provide the name, address, telephone number, fax number, and e-mail address of the person designated to receive all official mailings or notices from the Divisions of [ Economics and Finance, ] Communications [ , ] and Public Service Taxation. Updates to this information shall be provided to each division within 30 days of any change.

B. A new entrant shall comply with the following economic reporting requirements:

1. At a minimum annually, or as deemed necessary by the staff or the commission, a new entrant shall be required to provide information to the Division of [ Economics and FinanceCommunications ] that includes the number of access lines served, reported by residential lines and business lines [ , number of customers, reported by residential customers and business customers, ] and Virginia intrastate revenue.

2. A new entrant shall, on an annual basis or upon request of the staff or the commission, specify to the Division of [ Economics and FinanceCommunications ] the geographic areas served within Virginia. Such information shall include the identification of specific exchanges where service is provided or offered and the wire centers associated with all collocation arrangements.

C. A new entrant shall comply with the following tax reporting requirements: 1. A new entrant shall file all reports and provide all information required for the administration of tax statutes by the Division of Public Service Taxation. Information filed with the Division of Public Service Taxation shall include financial statements and other statements showing Virginia revenues. If available, audited financial statements shall be filed. A new entrant shall maintain records of all its real property and tangible personal property located in Virginia. Such records shall include the property's original cost and location by city, county, or town and district.

2. A new entrant shall remit the telecommunications relay surcharge prescribed by the commission pursuant to § 56-484.6 of the Code of Virginia and 20VAC5-415. The new entrant shall file all reports and make all payments as directed by the Division of Public Service Taxation.

D. If a new entrant establishes exchange boundaries that are not in conformance with the exchange boundaries of the incumbent local exchange carriers, maps depicting the new entrant's exchange boundaries shall be filed with the Division of Communications.

E. Should the commission determine that a new entrant has a monopoly over any of its services, whether or not those services are telephone services, it may order the new entrant to file annually with the Division of Communications data to demonstrate that its revenues from local exchange telecommunications services cover the long run incremental costs of such services in the aggregate.

F. A new entrant shall, upon request of the commission staff, file additional information with respect to any of its services or practices.

20VAC5-417-70. Name changes and use of assumed and fictitious names by a new entrant.

A. A new entrant shall comply with all provisions of Virginia law that regulate the change of name of a business entity. Within 30 days of the acceptance by the Clerk of the Commission of all documents required for the change of name of a business entity not related to the merger or reorganization of a new entrant, the new entrant shall file with the Clerk of the Commission an application to amend and reissue its certificate of public convenience and necessity to provide local exchange telecommunications services in its new name. The application shall conform to the commission's Rules of Practice and Procedure, 5VAC5-20.

B. A new entrant shall, before using an assumed or fictitious name in Virginia, comply with §§ 59.1-69 and 59.1-70 of Chapter 5 (§ 59.1-69 et seq.) of Title 59.1 of the Code of Virginia, Transacting Business Under Assumed Name. In addition, a new entrant shall:

1. File with the Division of Communications a copy of all certificates and related correspondence required by §§ 59.1-69 and 59.1-70 of the Code of Virginia. A new entrant shall identify all its fictitious and assumed names in itsany tariffs on file with the Division of Communications.

2. File with the Division of Public Service Taxation a copy of all certificates and related correspondence required by §§ 59.1-69 and 59.1-70 of the Code of Virginia.